IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. CR-0256-03-D IN THE 206TH DISTRICT COURT
FROM HIDALGO COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of aggravated sexual assault of a child and eight counts of indecency with a child and sentenced to 25 years' confinement on the aggravated sexual assault count and 15 years' confinement on the indecency counts. The Thirteenth Court of Appeals affirmed his convictions. See Cedillo v. State, No. 13-03-00689-CR, (Tex. App. - Corpus Christi, 2007, pet ref.) (not designated for publication.)
Applicant contends inter alia that his trial counsel rendered ineffective assistance because counsel failed to object to the admission of E.G.'s testimony concerning an extraneous offense on the basis that it was irrelevant and that its probative value was outweighed by its prejudicial effect. He also alleges that counsel was ineffective because he failed to request a limiting instruction with regards to the jury's use of E.G.'s testimony concerning an extraneous offense when it was admitted and again in the final jury charge.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel in that it shall order counsel to file an affidavit addressing: (1) whether counsel objected to E.G.'s testimony on the basis that it was irrelevant and that its probative value was outweighed by its prejudicial effect, and, if not, shall detail the strategic reason for not objecting; and, (2) whether counsel requested a limiting instruction with regards to the jury's use of E.G.'s testimony concerning an extraneous offense when it was admitted and again in the final jury charge and, if not, the strategic reason for not requesting such instructions. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial judge shall make findings of fact as to whether counsel objected to E.G.'s testimony on the basis that the testimony was irrelevant and that its probative value was outweighed by its prejudicial effect and, if not, as to why counsel did not object. The trial judge shall also make findings of fact as to whether counsel requested a limiting instruction with regards to the jury's use of E.G.'s testimony concerning an extraneous offense when it was admitted and again in the final jury charge and, if not, as to why counsel did not request such instructions. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: November 5, 2008
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